Wash. Supreme Court published opinion — 948461.pdf

employer's decision to take adverse action against the employee. Allison, 118 Wn.2d

at 96.

In addition, the standard requires the production of evidence] mere speculation

will not suffice to defeat summary judgment. Grimwood v. Univ. of Puget Sound, Inc.,

110 Wn.2d 355, 359-60, 753 P.2d 517 (1988)("The 'facts' required by CR 56(e) to

defeat a summary judgment motion are evidentiary in nature. Ultimate facts or

conclusions are insufficient. Likewise, conclusory statements of fact will not suffice."

(citation omitted)). "It is frequently impossible for a plaintiff . . . to discover direct

evidence contradicting someone's contention that he did not know something."

Hernandez, 343 F.3d at 1114. Instead, as long as "[a] reasonable jury could infer from

[a plaintiff's] evidence" that the plaintiff's protected activity was a substantial factor in

the adverse employment decision, that plaintiff has satisfied his or her burden of

establishing a prima facie case of retaliation. Id.

For these reasons, we adopt the "knew or suspected" standard because it

furthers WLAD's purpose of protecting employees from retaliation.

CONCLUSION

In conclusion, we reverse the Court of Appeals. We adopt the "knew or

suspected" standard and hold that Cornwell presented sufficient evidence to create a

dispute of fact about whether there was a causal link between her poor performance

rating and termination and the previous lawsuit she filed against Microsoft. Both Blake

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Cornwell(Dawn) v. Microsoft Corp.
No. 94846-1

and McKinley had actual knowledge that Cornwell filed the prior lawsuit against

Microsoft. Shortly after learning this, and over the objection of other managers, they